||COURT OF APPEALS OF GEORGIA UPHOLDS LEASEES RIGHT TO EXCLUDE WEAPONS UNDER GEORGIA GUN LAW

COURT OF APPEALS OF GEORGIA UPHOLDS LEASEES RIGHT TO EXCLUDE WEAPONS UNDER GEORGIA GUN LAW

On March 14, 2018, the Court of Appeals of Georgia decided GeorgiaCarry.org, Inc. v. Atlanta Botanical Garden, Inc.[i], in which the court examined whether the Atlanta Botanical Gardnen, a private entity, could prohibit weapons since they leased the property from the City of Atlanta, an entity that under Georgia law, could not prohibit weapons.   The relevant facts of this case are as follows:

The [Atlanta Botanical] Garden is a private, non-profit corporation that operates a botanical garden complex on property secured through a 50-year lease with the City of Atlanta. Evans holds a Georgia weapons carry license and is a member of GeorgiaCarry, a gun-rights organization. In October 2014, Evans twice visited the Garden, openly carrying a handgun in a holster on his waistband. Although no Garden employee objected to Evans’s weapon on his first visit, he was stopped by a Garden employee during his second visit and informed that weapons were prohibited on the Garden premises, except by police officers. A security officer eventually detained Evans, and he was escorted from the Garden by an officer with the Atlanta Police Department.

Evans and GeorgiaCarry subsequently sought declaratory and injunctive relief in Fulton County Superior Court on the basis that OCGA § 16-11-127 (c) authorized Evans-and similarly situated individuals-to carry a weapon at the Garden. Ultimately, the trial court held that the Garden’s property was considered private property and the Garden could legally exclude weapons; the court summary judgment to the Garden.   Evans and GeorgiaCarry appealed the grant of summary judgment to the Court of Appeals of Georgia.

The court of appeals first noted that OCGA § 16-11-127 (c) states, in pertinent part, the following:

A license holder . . . shall be authorized to carry a weapon . . . in every location in this state not [otherwise excluded by] this Code section; provided, however, that private property owners or persons in legal control of private property through a lease, rental agreement, licensing agreement, contract, or any other agreement to control access to such private property shall have the right to exclude or eject a person who is in possession of a weapon or long gun on their private property . . . (Emphasis supplied.).[ii]

Thus, it is clear that private property that is leased is fully under the control of the leasee for the purposes of deciding if weapons are allowed under the above statute.  The issue in this case is then whether the land leased by the Garden from the City of Atlanta, a public entity, constitutes public property or private property within the context of OCGA § 16-11-127 (c).

Evans and GeorgiaCarry argue that the property is leased from a public entity, the City of Atlanta, so it must be considered “public property” under OCGA § 16-11-127 (c) and therefore, the Garden cannot prohibit weapons.

The court of appeals examined existing Georgia precedent for guidance on this issue.  The court stated

The appellate courts of this state have not yet examined the classification of property under OCGA § 16-11-127 (c). Nevertheless, our Supreme Court has previously held-specifically in the context of a leasehold interest-that “[p]rivate property becomes public property when it passes into public ownership; and public property becomes private property when it passes into private ownership.Delta Air Lines, Inc. v. Coleman, 219 Ga. 12, 16 (1) (131 SE2d 768) (1963). Delta Air Lines involved a tract of land that Delta leased from the City of Atlanta. Id. at 12-13. Delta argued that it was exempt from paying ad valorem tax on the land because the land was public property. Id. at 13. The Court disagreed, holding that, “[w]hen any estate in public property is disposed of, it loses its identity of being public property and is subject to taxes while in private ownership just as any other privately-owned property.” Id. at 16 (1). Thus, when a public authority conveys a leasehold interest to a private lessee, the leasehold estate “is severed from the fee” and classified as private property. See id.[iii] [emphasis added]

The court also examined Douglas County v. Anneewakee, Inc.,[iv] in which a tax- exempt entity leased property from a for-profit, taxable entity.  The issue was whether the county could tax the tax-exempt organization since they lease property from a taxable entity.  The court of appeals held

[T]he leasehold held by the [tax-exempt organization], when severed from the private-and taxable-fee owned by [the for-profit corporation], took on the tax-exempt status of the holder of the leasehold.[v]

Lastly, the court examined Columbus Bd. of Tax Assessors v. Med. Ctr. Hosp. Auth.[vi] in which the Supreme Court of Georgia examined whether a tax-exempt hospital authority who leased private property could claim tax exempt status.  The Supreme Court stated that that the hospital authority could claim tax exempt status so long as it is being used public purpose in furtherance of the hospital authority.  The court stated

[U]nder Georgia law, we look to the lessee, not the lessor, to determine the status of leased property.[vii] [emphasis added]

Regarding the case at hand with Evans and GeorgiaCarry, in light of the guiding principles discussed in the above cases, the court of appeals held that the Garden is private property when leased from the City of Atlanta, and as such the Garden can prohibit weapons under OCGA § 16-11-127 (c).  Specifically, the court stated

[T]he leasehold interest held by the Garden, when severed from the fee owned by the City of Atlanta, is classified as private property… Nothing in OCGA § 16-11-127 (c) expressly contravenes the common-law authority cited above, nor does it do so by necessary implication. Indeed, the only way to rectify the plain and unambiguous language of OCGA § 16-11-127 (c) with well-established Georgia precedent is to conclude that the Garden, a private entity with a leasehold interest in what is deemed to be private property, may exclude licensed weapons holders from entering that property. See id.; Columbus Bd. of Tax Assessors, __ Ga. at __ (2); Delta Air Lines, 219 Ga. at 16 (1); Anneewakee, Inc., 179 Ga. App. at 273-274 (3).[viii] [emphasis added]

Therefore, the court of appeals affirmed the decision of the trial court.

____________________________________

CITATIONS:

[i] A17A1639 (Ga. App. Decided March 14, 2018)

[ii] Id.

[iii] Id.

[iv] 179 Ga. App. 270 (346 SE2d 368) (1986)

[v] Id. at 274

[vi] 312 Ga. 358, 806 SE2d 525 (2017)

[vii] Id. at 362-363

[viii] GeorgiaCarry.org, Inc., A17A1639

By |2018-10-16T13:22:21+00:00October 16th, 2018|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.